The State Bar seeks public comment on Proposed Formal Opinion Interim No. 17-0003 (Duty to Prospective Client)
Deadline: January 4, 2021
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
The State Bar Standing Committee on Professional Responsibility and Conduct is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with applicable State Bar policy and procedure, the committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which will go into effect on November 1, 2018. Information about the new rules is available at the State Bar website. Proposed Formal Opinion Interim No. 17-0003 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No. 17-0003 considers:
The opinion interprets rules 1.01(e), 1.4, 1.6, 1.7, 1.8.2, 1.9, 1.10, 1.16 and 1.18 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code section 6068(e)(1).
The opinion digest states: When a person is a prospective client within the meaning of rule 1.18(a), the interviewing lawyer owes the prospective client the same duty of confidentiality owed to an existing or former client pursuant to rules 1.6 and 1.9 even though no lawyer-client relationship thereafter ensues. The lawyer may not use or disclose such information without the prospective client’s informed written consent. This is true even if the information would be material to the representation of an existing client of the lawyer or the lawyer’s law firm. The duty of confidentiality to the prospective client outweighs the duty to inform the current client.
An interviewing lawyer who receives material confidential information from a prospective client is prohibited from accepting representation materially adverse to the prospective client in the same or a substantially related matter absent informed written consent. That prohibition is imputed to other members of the law firm unless the interviewing lawyer took reasonable measures to obtain only information that is reasonably necessary to determine whether to represent the existing client and the law firm promptly undertook the screening measures specified in rule 1.18(d)(2). Reasonable measures include advising the client to provide only identified information that the lawyer reasonably needs to decide whether to undertake the representation and limiting questioning of the client so as to elicit only such information. The information reasonably necessary to determine whether to represent a prospective client is that which a reasonable lawyer in the situation of the interviewing attorney would require to determine whether the proposed representation was both ethically proper and economically acceptable. It includes information beyond what is required to determine whether the representation is ethically permissible to determine a conflict of interest, may include information as to whether the client’s position is tenable, and, in appropriate circumstances, may include information relating to the client’s reputation or financial condition, the merits of the claim, and the likely range of recoveries.
The prohibition against accepting a representation that is materially adverse to a prospective client resulting from the receipt of that prospective client’s material confidential information can be waived with the informed written consent of both the prospective client and any affected client of the law firm. A prospective client may give advance informed written consent to the law firm acting adversely to the prospective client in the same matter or substantially related matters.
At its September 11, 2020 meeting and in accordance with their procedures, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 17-0003 for a 90-day public comment distribution.
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Standing Committee on Professional Responsibility and Conduct
January 4, 2021